What is Brady and why is it important?

Brady evidence comes from the case of Brady v. Maryland, 373 U.S. 83 (1963), which held that due process requires that material, exculpatory evidence be provided to the defense.

To show materiality, the defense must show that if the evidence had been disclosed, that the result of the proceeding would have been different. This has been stated in another way: whether there is a "reasonable probability" that the defendant received a fair trial without the evidence or the suppression of the evidence undermined confidence in the outcome of the trial.

There is no Brady violation if the defense could have obtained the evidence through reasonable diligence. 

Brady is important because in most, if not all cases, the government does the initial investigation and "controls the crime scene." They get the first crack at the evidence, decide what to collect, what not to collect, who to talk to, what to photograph, what to test, etc. The defense may not get access to these materials for weeks or months. For some of these cases, time may be of the essence as memories fade, evidence degrades, automated surveillance video is recorded over, or any number of things that happen due to the passage of time. 

Brady, when done properly, will prevent the government from hiding evidence. One common form of evidence that is helpful to the defense is called impeachment evidence. That is evidence that shows the witness has been dishonest in the past. Of particular importance in most criminal cases is when a police officer in most has been dishonest.

In a recent LA Times article, the authors depict how one officer's act of dishonesty was kept hidden and how that impacted numerous cases.

Some prosecutors' offices have "Brady lists" which are lists of police with known issues that can be used as impeachment evidence. However, getting accurate Brady lists can be more difficult than one may imagine due to the secrecy around officers' disciplinary records. The police are generally in charge of policing themselves when it comes to allegations of misconduct. The problems with such a system of trusting any organization to police themselves should be understood, but they may be especially problematic if the particular agency has an "us" vs. "them" (them being normal people) attitude or act as a para-militaristic organization as opposed to an agency that is there to protect you (the normal person). 

Also, inherent in the "police yourself" problem is the tit-for-tat, if you scratch my back, I'll scratch yours, which breeds self-dealing and corruption. There is also a fear of retaliation for speaking up.

So, because only certain classes of misconduct will be reported and only if the misconduct is established beyond a certain threshold, will the information qualify to make it onto a Brady list. 

The spirit of Brady is in the right place, but, like many aspects of the justice system, the way it plays out in the real world may not be so righteous.  

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You can see out firm website here: http://wenatcheelaw.com/

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If I live outside of Washington, can I do a deferred prosecution?

The scenario presented here is if you live outside of Washington, but received a DUI or Physical Control charge while in Washington, say on vacation, can you do an RCW 10.05 deferred prosecution?

First, for a brief overview of what a deferred prosecution is, see my blog post here.

So, what makes this issue complicated? The complicating factor is that a deferred prosecution requires the person seeking it to do two years of treatment followed and an additional three years of probation.

The statute makes reference that the treatment must be done in an "approved substance use disorder treatment program as designated in chapter 71.24 RCW." RCW 71.24 states that an "'[a]pproved substance use disorder treatment program' means a program for persons with a substance use disorder provided by a treatment program licensed or certified by the department [of Social and Health Services] as meeting standards adopted under this chapter." The qualifications for DSHS approval are somewhat onerous.

Normally, this would mean that someone who lived in Connecticut and got a DUI in Washington who wanted to pursue a deferred prosecution in Washington would have to do their treatment at a DSHS approved facility. DSHS will only approve facilities in Washington. So, effectively, the out-of-state person would have to move to Washington for two years to do their treatment. The problem should be obvious: that someone who lives in Connecticut should not be deprived of the ability to pursue a deferred prosecution due to the fact that they live in Connecticut.

Okay, so what next? Well, if you look at RCW 10.05.150, you will see that it states that "[a]ll treatment within the purview of this section shall occur within or be approved by a state-approved substance use disorder treatment program as described in [chapter 71.24 RCW]." The bolded language is key. You may have a state-approved agency approve the out-of-state treatment agencies plan. So, the person in Connecticut would seek out a treatment agency in Connecticut, and have the an approved Washington agency review and approve the plan.

If you need help defending your Washington State DUI or Physical Control case, or even seeking assistance in pursuing a deferred prosecution, give us a call at Kottkamp & Yedinak, PLLC at (509) 667-8667.

If they were charged, they must have done something wrong, right?

Recently, it came out that a police department in Florida was looking for random black people to pin unsolved crimes on. Whistleblowers have outed the practice, but how much harm has already been done?

In another case, an officer from California was found to be taking bribes and obstructing justice.

Often, when examining potential jurors who may be selected to serve over a criminal case, several will answer that the defendant in the case must have done something wrong or he would not be there and be charged with a crime. They expect that there must be evidence against him, and even if it is not presented to them during the trial, some will believe that it was withheld due to lawyers (usually the defense) outside of their presence.

The examples from Florida and California here show that sometimes this is not the case. The sole reason for pinning these crimes on innocent people was to boost the department's stats. This was the justification for blaming people for crimes that they did not commit. These innocent people were being charged with serious offenses, which could have lasting impacts on their freedom, financial obligations, could require probation, could cost them certain rights (voting, firearms), and cause many other very harsh and very serious consequences.

In order for the justice system to work properly, not only must police and police investigations be held to some higher accountability and jurors must be more open-minded to the very real problems with the criminal justice system.

What are the field sobriety tests? Do I have to do them?

The field sobriety test is generally made up of 3 parts, the horizontal gaze nystagmus, the walk and turn, and the one leg stand. There is also a forth part of the field sobriety testing called the portable/preliminary breathalyzer test.

The tests are voluntary meaning that you do not have to do them. If you elect to do them, there is a good chance you will fail. However, your refusal to do them will be considered evidence that you refused them because you were guilty. You are damned if you do, damned if you don't. Often, the police have already decided to arrest you before even before asking you to take the test and they are just wanting to gather more evidence that will later be used to try and convict you.

The tests are somewhat controversial in that the National Highway Traffic Safety Administration (NHTSA) has touted these tests as being scientific and highly accurate in predicting levels of intoxication. This understanding has trickled down to law enforcement agencies and to the courts. The tests are now generally accepted by these groups as being generally accurate, reliable, and admissible. The basis for the scientific accuracy of these tests is mainly due to three validation studies contracted by NHTSA. The studies are well worth looking at, but are not the topic of this blog post.

The first test is the horizontal gaze nystagmus, or HGN. Nystagmus is can be described as a twitching or bouncing of the eye as is moves back and forth. The description often given by law enforcement is a windshield wiper on a dry windshield.

There are three portions of the tests, checking for smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees. The maximum score one can reach is a 6/6, meaning that all of these clues would be present in each eye. Even a 4/6 is a "failing" score. 

This is the one that is most heavily relied on. However, there are many causes of nystagmus and many have nothing to do with intoxication. In fact, everyone has naturally occurring nystagmus to some degree.

The next test is the walk and turn. You are asked to take nine heel-to-toe steps down an invisible line, shuffle around to face back down the line, and take nine heel-to-toe steps back to the starting point. There are eight "clues" that can be observed. A score of two is a failing score. The clues are stepping off of the invisible line, not stepping heel-to-toe, doing an incorrect number of steps, doing an improper turn, raising your arms more than six inches, being unable to maintain balance, and starting the test too soon.

The final test in the battery of tests is the one leg stand. You are to count out loud for thirty seconds while raising one leg about 6 inches off of the ground. There are four "clues" for this test. A score of 2 is a failing score. The clues are swaying, hopping, putting your foot down, and using your arms to balance.

The field sobriety test manuals used to say that the tests had to be done in a standardized manner, i.e., the same way every time. The language stating this has been watered down or altogether removed over time. 

Again, the tests are not solely tests of agility. If you get bored while the officer is giving you the instructions for the walk and turn test and move your feet out of the starting position, you already have one point. One more, and you have failed the test.

After the field sobriety tests are done, you will usually be asked to take a roadside breathalyzer. The results of the roadside breathalyzer are not admissible in court. The officer is supposed to tell you that. If you blow over the limit, you are almost guaranteed to be arrested. If you blow under, you may still be arrested. If you refuse the portable breath test, your refusal may be used against you later and you will probably still be arrested.

Since this roadside breath test is not admissible and will give you a general idea of what your BAC will be at the police station, you may want to do it and find out so that when you are provided the opportunity to call an attorney at the station, you can let them know what your BAC was and when your last drinks occurred. This can help the attorney to advise you as to whether or not to take the actual BAC test that can be used against you in court.